ALEJANDRO ESTRADA VS SOLEDAD ESCRITOR

The facts of the case will determine whether respondent will prevail in her plea of religious
freedom. It is necessary therefore to lay down the facts in detail, careful not to omit the
essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge
Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, requesting
for an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is
living with a man not her husband. They allegedly have a child of eighteen to twenty years
old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las
Pias City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes
that she is committing an immoral act that tarnishes the image of the court, thus she should not
be allowed to remain employed therein as it might appear that the court condones her act. [5]
Judge Caoibes referred the letter to Escritor who stated that there is no truth as to the veracity of
the allegation and challenged Estrada to appear in the open and prove his allegation in the
proper forum.[6] Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved
for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she
previously filed an administrative complaint against him and said case was still pending in the
Office of the Court Administrator (OCA). Escritors motion was denied. The preliminary conference
proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the
letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice
of Las Pias City, he learned from conversations therein that Escritor was living with a man not her
husband and that she had an eighteen to twenty-year old son by this man.This prompted him to
write to Judge Caoibes as he believed that employees of the judiciary should be respectable and
Escritors live-in arrangement did not command respect. [7]
Respondent Escritor testified that when she entered the judiciary in 1999, [8] she was already a
widow, her husband having died in 1998. [9] She admitted that she has been living with Luciano
Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a
member of the religious sect known as the Jehovahs Witnesses and the Watch Tower and Bible
Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after
ten years of living together, she executed on July 28, 1991 a Declaration of Pledging
Faithfulness, viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate
in marital relationship; that I have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because of having been unable to do so
that I therefore make this public declaration pledging faithfulness in this marital relationship.
I recognize this relationship as a binding tie before Jehovah God and before all persons to be held
to and honored in full accord with the principles of Gods Word. I will continue to seek the means
to obtain legal recognition of this relationship by the civil authorities and if at any future time a
change in circumstances make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.[10]

Escritors partner, Quilapio, executed a similar pledge on the same day. [11] Both pledges were
executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her
pledge, her husband was still alive but living with another woman. Quilapio was likewise married
at that time, but had been separated in fact from his wife. During her testimony, Escritor
volunteered to present members of her congregation to confirm the truthfulness of their
Declarations of Pledging Faithfulness, but Judge Caoibes deemed it unnecessary and considered
her identification of her signature and the signature of Quilapio sufficient authentication of the
documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn,
endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon
recommendation of Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment
on the charge against her. In her comment, Escritor reiterated her religious congregations
approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to state with candor
that there is no truth as to the veracity of same allegation. Included herewith are documents
denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both
respondent and her mate in marital relationship with the witnesses concurring their acceptance
to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine
Branch.
Same marital arrangement is recognized as a binding tie before JEHOVAH God and before all
persons to be held to and honored in full accord with the principles of Gods Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court with verification from
the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned
believes to be a high authority in relation to her case. [13]
Deputy Court Administrator Christopher O. Lock recommended that the case be referred to
Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report
and recommendation. In the course of Judge Macedas investigation, Escritor again testified that
her congregation allows her conjugal arrangement with Quilapio and it does not consider it
immoral. She offered to supply the investigating judge some clippings which explain the basis of
her congregations belief and practice regarding her conjugal arrangement.Escritor started living
with Quilapio twenty years ago when her husband was still alive but living with another
woman. She met this woman who confirmed to her that she was living with her (Escritors)
husband.[14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He had been a
presiding minister since 1991 and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for executing a Declaration of Pledging
Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules
and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then
we request them to execute a Public Declaration of Pledge of faithfulness.

Q: What is that document?

A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose
(sic) to execute this document?
A: This must be signed, the document must be signed by the elders of the congregation; the
couple, who is a member (sic) of the congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in relation with this document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital
relationship (sic) gives the Christian Congregation view that the couple has put themselves on
record before God and man that they are faithful to each other. As if that relation is validated by
God.
Q: From your explanation, Minister, do you consider it a pledge or a document between the
parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who contracted with the
opposite member of my congregation, opposite sex, and that this document will give us the right
to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for
you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital
relationship.
Q: Do you mean to say, Minister, by executing this document the contracting parties have the
right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians
follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in
that verse of the Bible, Jesus said that everyone divorcing his wife, except on account of
fornication, makes her a subject for adultery, and whoever marries a divorced woman commits
adultery.[15]
Escritor and Quilapio transferred to Salazars Congregation, the Almanza Congregation in Las
Pias, in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar
had no personal knowledge of the personal circumstances of Escritor and Quilapio when they
executed their declarations. However, when the two transferred to Almanza, Salazar inquired
about their status from the Atimonan Congregation, gathered comments of the elders therein,
and requested a copy of their declarations. The Almanza Congregation assumed that the

personal circumstances of the couple had been considered by the Atimonan Congregation when
they executed their declarations.
Escritor and Quilapios declarations are recorded in the Watch Tower Central office. They were
executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society
which was lifted from the article, Maintaining Marriage in Honor Before God and Men, [16] in the
March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovahs Witnesses congregation and
is binding within the congregation all over the world except in countries where divorce is
allowed. The Jehovahs congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities approval of the marital relationship because of legal
impediments. It is thus standard practice of the congregation to check the couples marital status
before giving imprimatur to the conjugal arrangement. The execution of the declaration finds
scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse
can remarry. The marital status of the declarants and their respective spouses commission of
adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is
presumed that the Atimonan Congregation conducted an investigation on her marital status
before the declaration was approved and the declaration is valid everywhere, including the
Almanza Congregation. That Escritors and Quilapios declarations were approved are shown by
the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed
from the congregations branch office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment to
marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain
valid. Once all legal impediments for both are lifted, the couple can already register their
marriage with the civil authorities and the validity of the declarations ceases. The elders in the
congregations can then solemnize their marriage as authorized by Philippine law. In sum,
therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in good standing in the
congregation.[17]
Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovahs
Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract
Society of the Philippines, Inc., presented the original copy of the magazine article entitled,
Maintaining Marriage Before God and Men to which Escritor and Minister Salazar referred in their
testimonies. The article appeared in the March 15, 1977 issue of the Watchtower magazine
published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract
Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the
article. The article is distributed to the Jehovahs Witnesses congregations which also distribute
them to the public.[18]
The parties submitted their respective memoranda to the investigating judge. Both stated that
the issue for resolution is whether or not the relationship between respondent Escritor and
Quilapio is valid and binding in their own religious congregation, the Jehovahs
Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritors
administrative liability must likewise be determined. Estrada argued, through counsel, that the
Declaration of Pledging Faithfulness recognizes the supremacy of the proper public authorities
such that she bound herself to seek means to . . . legalize their union. Thus, even
assuming arguendo that the declaration is valid and binding in her congregation, it is binding
only to her co-members in the congregation and serves only the internal purpose of displaying to

the rest of the congregation that she and her mate are a respectable and morally upright
couple. Their religious belief and practice, however, cannot override the norms of conduct
required by law for government employees. To rule otherwise would create a dangerous
precedent as those who cannot legalize their live-in relationship can simply join the Jehovahs
Witnesses congregation and use their religion as a defense against legal liability. [19]
On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with
Quilapio based on the belief and practice of her religion, the Jehovahs Witnesses. She quoted
portions of the magazine article entitled, Maintaining Marriage Before God and Men, in her
memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the respondent and
her mate greatly affect the administrative liability of respondent. Jehovahs Witnesses admit and
recognize (sic) the supremacy of the proper public authorities in the marriage
arrangement. However, it is helpful to understand the relative nature of Caesars authority
regarding marriage. From country to country, marriage and divorce legislation presents a
multitude of different angles and aspects. Rather than becoming entangled in a confusion of
technicalities, the Christian, or the one desiring to become a disciple of Gods Son, can be guided
by basic Scriptural principles that hold true in all cases.
Gods view is of first concern. So, first of all the person must consider whether that ones present
relationship, or the relationship into which he or she contemplates entering, is one that could
meet with Gods approval, or whether in itself, it violates the standards of Gods Word. Take, for
example, the situation where a man lives with a wife but also spends time living with another
woman as a concubine. As long as such a state of concubinage prevails, the relationship of the
second woman can never be harmonized with Christian principles, nor could any declaration on
the part of the woman or the man make it so. The only right course is cessation of the
relationship. Similarly with an incestuous relationship with a member of ones immediate family,
or a homosexual relationship or other such situation condemned by Gods Word. It is not the lack
of any legal validation that makes such relationships unacceptable; they are in themselves
unscriptural and hence, immoral. Hence, a person involved in such a situation could not make
any kind of Declaration of Faithfulness, since it would have no merit in Gods eyes.
If the relationship is such that it can have Gods approval, then, a second principle to consider is
that one should do all one can to establish the honorableness of ones marital union in the eyes of
all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having
obtained the divorce (on whatever legal grounds may be available), the present union can
receive civil validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the principles of Gods Word, and
if one has done all that can reasonably be done to have it recognized by civil authorities and has
been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some cases,
as has been noted, the extreme slowness of official action may make accomplishing of legal
steps a matter of many, many years of effort. Or it may be that the costs represent a crushingly
heavy burden that the individual would need years to be able to meet. In such cases, the
declaration pledging faithfulness will provide the congregation with the basis for viewing the
existing union as honorable while the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God,
should be able to approach the matter in a balanced way, neither underestimating nor

overestimating the validation offered by the political state. She always gives primary concern to
Gods view of the union. Along with this, every effort should be made to set a fine example of
faithfulness and devotion to ones mate, thus, keeping the marriage honorable among all. Such
course will bring Gods blessing and result to the honor and praise of the author of marriage,
Jehovah God. (1 Cor. 10:31-33)[20]
Respondent also brought to the attention of the investigating judge that complainants
Memorandum came from Judge Caoibes chambers [21] whom she claims was merely using
petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritors factual
allegations credible as they were supported by testimonial and documentary evidence. He also
noted that (b)y strict Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: that which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good and respectable
members of the community (7 C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He
pointed out, however, that the more relevant question is whether or not to exact from
respondent Escritor, a member of Jehovahs Witnesses, the strict moral standards of the Catholic
faith in determining her administrative responsibility in the case at bar. [22] The investigating
judge acknowledged that religious freedom is a fundamental right which is entitled to the highest
priority and the amplest protection among human rights, for it involves the relationship of man to
his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby recommended the
dismissal of the complaint against Escritor. [23]
After considering the Report and Recommendation of Executive Judge Maceda, the Office of the
Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of
Court Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint. DCA Lock stressed that although
Escritor had become capacitated to marry by the time she joined the judiciary as her husband
had died a year before, it is due to her relationship with a married man, voluntarily carried on,
that respondent may still be subject to disciplinary action. [24] Considering the ruling of the Court
in Dicdican v. Fernan, et al.[25] that court personnel have been enjoined to adhere to the
exacting standards of morality and decency in their professional and private conduct in order to
preserve the good name and integrity of the court of justice, DCA Lock found Escritors defense of
freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he
recommended that respondent be found guilty of immorality and that she be penalized with
suspension of six months and one day without pay with a warning that a repetition of a similar
act will be dealt with more severely in accordance with the Civil Service Rules. [26]
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be well to understand not
only its birth in the United States, but its conception in the Old World. One cannot understand,
much less intelligently criticize the approaches of the courts and the political branches to
religious freedom in the recent past in the United States without a deep appreciation of the roots
of these controversies in the ancient and medieval world and in the American experience. [27] This
fresh look at the religion clauses is proper in deciding this case of first impression.

In primitive times, all of life may be said to have been religious. Every significant event in the
primitive mans life, from birth to death, was marked by religious ceremonies. Tribal society
survived because religious sanctions effectively elicited adherence to social customs. A person
who broke a custom violated a taboo which would then bring upon him the wrathful vengeance
of a superhuman mysterious power.[28] Distinction between the religious and non-religious would
thus have been meaningless to him. He sought protection from all kinds of evil - whether a wild
beast or tribe enemy and lightning or wind - from the same person. The head of the clan or the
Old Man of the tribe or the king protected his wards against both human and superhuman
enemies. In time, the king not only interceded for his people with the divine powers, but he
himself was looked upon as a divine being and his laws as divine decrees. [29]
Time came, however, when the function of acting as intermediary between human and spiritual
powers became sufficiently differentiated from the responsibility of leading the tribe in war and
policing it in peace as to require the full-time services of a special priest class. This saw the birth
of the social and communal problem of the competing claims of the king and priest.Nevertheless,
from the beginning, the king and not the priest was superior. The head of the tribe was the
warrior, and although he also performed priestly functions, he carried out these functions
because he was the head and representative of the community. [30]
There being no distinction between the religious and the secular, the same authority that
promulgated laws regulating relations between man and man promulgated laws concerning
mans obligations to the supernatural. This authority was the king who was the head of the state
and the source of all law and who only delegated performance of rituals and sacrifice to the
priests. The Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny,
perjury, and other crimes; regulated the fees of surgeons and the wages of masons and tailors
and prescribed rules for inheritance of property; [31] and also catalogued the gods and assigned
them their places in the divine hierarchy so as to put Hammurabis own god to a position of
equality with existing gods.[32] In sum, the relationship of religion to the state (king) in preHebreic times may be characterized as a union of the two forces, with the state almost
universally the dominant partner.[33]
With the rise of the Hebrew state, a new term had to be coined to describe the relation of the
Hebrew state with the Mosaic religion: theocracy. The authority and power of the state was
ascribed to God.[34] The Mosaic creed was not merely regarded as the religion of the state, it was
(at least until Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded
king and prince. As man of God, Moses decided when the people should travel and when to pitch
camp, when they should make war and when peace. Saul and David were made kings by the
prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code
combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were
not of secondary importance. On the contrary, religious motivation was primary and allembracing: sacrifices were made and Israel was prohibited from exacting usury, mistreating
aliens or using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance
the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its
capital by elevating its city-god to a primary position over the previous reigning gods. [35] Moses,
on the other hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and
independence to further Gods purposes. Liberation and Exodus were preludes to Sinai and the
receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the
temple and the full worship of God.[36]

Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more
than anything else, charted not only the future of religion in western civilization, but equally, the
future of the relationship between religion and state in the west. This fact is acknowledged by
many writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and universal God
that introduced a religious exclusivism leading to compulsion and persecution in the
realm of religion.Ancient religions were regarded as confined to each separate people
believing in them, and the question of change from one religious belief to another did
not arise. It was not until an exclusive fellowship, that the questions of proselytism, change of
belief and liberty of religion arose.[37] (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was
not only superior to the state, but it was all of the state. The Law of God as transmitted through
Moses and his successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and
David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but
soon the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the
prophet of God.[38] Under Solomon, the subordination of religion to state became complete; he
used religion as an engine to further the states purposes. He reformed the order of priesthood
established by Moses because the high priest under that order endorsed the claim of his rival to
the throne.[39]
The subordination of religion to the state was also true in pre-Christian Rome which engaged in
emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy,
he placed religion at a high esteem as part of a political plan to establish the real religion of preChristian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among
the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo,
Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other
emperors before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor as the Christians dogmatic
exclusiveness prevented them from paying homage to publicly accepted gods. In the first two
centuries after the death of Jesus, Christians were subjected to persecution. By the time of the
emperor Trajan, Christians were considered outlaws. Their crime was hatred of the human race,
placing them in the same category as pirates and brigands and other enemies of mankind who
were subject to summary punishments.[41]
In 284, Diocletian became emperor and sought to reorganize the empire and make its
administration more efficient. But the closely-knit hierarchically controlled church presented a
serious problem, being a state within a state over which he had no control. He had two options:
either to force it into submission and break its power or enter into an alliance with it and procure
political control over it. He opted for force and revived the persecution, destroyed the churches,
confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice. [42] But
his efforts proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine joined with
Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to
Christians on condition that nothing is done by them contrary to discipline. [43] A year later, after
Galerius died, Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a

document of monumental importance in the history of religious liberty. It provided that liberty of
worship shall not be denied to any, but that the mind and will of every individual shall be
free to manage divine affairs according to his own choice. (emphasis supplied) Thus, all
restrictive statutes were abrogated and it was enacted that every person who cherishes the
desire to observe the Christian religion shall freely and unconditionally proceed to observe the
same without let or hindrance. Furthermore, it was provided that the same free and open power
to follow their own religion or worship is granted also to others, in accordance with the
tranquillity of our times, in order that every person may have free opportunity to worship
the object of his choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige,
and eventually, exclusive power. Religion became an engine of state policy as Constantine
considered Christianity a means of unifying his complex empire. Within seven years after the
Edict of Milan, under the emperors command, great Christian edifices were erected, the clergy
were freed from public burdens others had to bear, and private heathen sacrifices were
forbidden.
The favors granted to Christianity came at a price: state interference in religious
affairs. Constantine and his successors called and dismissed church councils, and enforced unity
of belief and practice. Until recently the church had been the victim of persecution and
repression, but this time it welcomed the states persecution and repression of the nonconformist
and the orthodox on the belief that it was better for heretics to be purged of their error than to
die unsaved.
Both in theory as in practice, the partnership between church and state was not easy. It was a
constant struggle of one claiming dominance over the other. In time, however, after the
collapse and disintegration of the Roman Empire, and while monarchical states were
gradually being consolidated among the numerous feudal holdings, the church stood
as the one permanent, stable and universal power. Not surprisingly, therefore, it
claimed not merely equality but superiority over the secular states. This claim,
symbolized by Pope Leos crowning of Charlemagne, became the churchs accepted principle of its
relationship to the state in the Middle Ages. As viewed by the church, the union of church and
state was now a union of the state in the church. The rulers of the states did not concede to this
claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself
crowned his own son as successor to nullify the inference of supremacy. [45] The whole history
of medieval Europe was a struggle for supremacy between prince and Pope and the
resulting religious wars and persecution of heretics and nonconformists. At about the
second quarter of the 13th century, the Inquisition was established, the purpose of which was the
discovery and extermination of heresy. Accused heretics were tortured with the approval of the
church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming
the Catholic Church and resulting in the establishment of Protestant churches. While Protestants
are accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as
the principle governing the relations between a democratic state and its citizens, history shows
that it is more accurate to say that the same causes that gave rise to the Protestant revolution
also resulted in the widespread acceptance of the principle of religious liberty, and ultimately of
the principle of separation of church and state. [46] Pleas for tolerance and freedom of conscience
can without doubt be found in the writings of leaders of the Reformation.But just as Protestants
living in the countries of papists pleaded for toleration of religion, so did the papists that lived

where Protestants were dominant.[47] Papist and Protestant governments alike accepted the idea
of cooperation between church and state and regarded as essential to national unity the
uniformity of at least the outward manifestations of religion. [48]Certainly, Luther, leader of the
Reformation, stated that neither pope, nor bishop, nor any man whatever has the right of making
one syllable binding on a Christian man, unless it be done with his own consent. [49] But when the
tables had turned and he was no longer the hunted heretic, he likewise stated when he made an
alliance with the secular powers that (h)eretics are not to be disputed with, but to be condemned
unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and
bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise.
[50]
To Luther, unity among the peoples in the interests of the state was an important
consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin
strongly espoused theocracy or the use of the state as an engine to further religion. In
establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he included
criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy,
he cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious liberty. Erasmus, who
belonged to the Renaissance than the Reformation, wrote that (t)he terrible papal edict, the more
terrible imperial edict, the imprisonments, the confiscations, the recantations, the fagots and
burnings, all these things I can see accomplish nothing except to make the evil more widespread.
[52]
The minority or dissident sects also ardently advocated religious liberty. The
Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and the Friends of
the Quakers founded by George Fox in the 17 th century, endorsed the supremacy and freedom of
the individual conscience. They regarded religion as outside the realm of political governments.
[53]
The English Baptists proclaimed that the magistrate is not to meddle with religion or matters
of conscience, nor compel men to this or that form of religion. [54]
Thus, out of the Reformation, three rationalizations of church-state relations may be
distinguished: the Erastian (after the German
doctor Erastus), the theocratic, and
the separatist.The first assumed state superiority in ecclesiastical affairs and the use of religion
as an engine of state policy as demonstrated by Luthers belief that civic cohesion could not exist
without religious unity so that coercion to achieve religious unity was justified. The second was
founded on ecclesiastical supremacy and the use of state machinery to further religious interests
as promoted by Calvin. The third, which was yet to achieve ultimate and complete
expression in the New World, was discernibly in its incipient form in the arguments of
some dissident minorities that the magistrate should not intermeddle in religious
affairs.[55] After the Reformation, Erastianism pervaded all Europe except for Calvins theocratic
Geneva. In England, perhaps more than in any other country, Erastianism was at its
height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen
trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud
made of any substance other than wool.[56] Under Elizabeth, supremacy of the crown over the
church was complete: ecclesiastical offices were regulated by her proclamations, recusants were
fined and imprisoned, Jesuits and proselytizing priests were put to death for high treason, the
thirty-nine Articles of the Church of England were adopted and English Protestantism attained its
present doctrinal status.[57] Elizabeth was to be recognized as the only Supreme Governor of this
realm . . . as well in all spiritual or ecclesiastical things or causes as temporal. She and her
successors were vested, in their dominions, with all manner of jurisdictions, privileges, and
preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction.
[58]
Later, however, Cromwell established the constitution in 1647 which granted full liberty

to all Protestant sects, but denied toleration to Catholics. [59] In 1689, William III issued
the Act of Toleration which established a de facto toleration for all except Catholics. The
Catholics achieved religious liberty in the 19 th century when the Roman Catholic Relief
Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted
to sit in Parliament.[60]
When the representatives of the American states met in Philadelphia in 1787 to draft
the constitutional foundation of the new republic, the theocratic state which had
flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was completely
gone. The prevailing church-state relationship in Europe was Erastianism embodied in the system
of jurisdictionalism whereby one faith was favored as the official state-supported religion, but
other faiths were permitted to exist with freedom in various degrees. No nation had yet
adopted as the basis of its church-state relations the principle of the mutual
independence of religion and government and the concomitant principle that neither
might be used as an engine to further the policies of the other, although the principle
was in its seminal form in the arguments of some dissident minorities and intellectual
leaders of the Renaissance. The religious wars of 16th and 17th century Europe were a
thing of the past by the time America declared its independence from the Old World,
but their memory was still vivid in the minds of the Constitutional Fathers as expressed
by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization of America had
been filled with turmoil, civil strife, and persecution generated in large part by established sects
determined to maintain their absolute political and religious supremacy. With the power of
government supporting them, at various times and places, Catholics had persecuted Protestants,
Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects,
Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of
these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious
group happened to be on top and in league with the government of a particular time and place,
men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for
which these punishments had been inflicted were such things as speaking disrespectfully of the
views of ministers of government-established churches, non-attendance at those churches,
expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.
[61]

In 1784, James Madison captured in this statement the entire history of church-state relations
in Europe up to the time the United States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish
religious discord, by proscribing all differences in religious opinions. [62]
In sum, this history shows two salient features: First, with minor exceptions, the history of
church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and
war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by secular powers to
promote secular purposes and policies, and the willing acceptance of that role by the
vanguards of religion in exchange for the favors and mundane benefits conferred by
ambitious princes and emperors in exchange for religions invaluable service. This was
the context in which the unique experiment of the principle of religious freedom and

separation of church and state saw its birth in American constitutional democracy and
in human history.